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footing； are enforced without the help of a Court of Justice。 But
the distraint of cattle for damage still retains a variety of
archaic features。 It is not a complete remedy。 The taker merely
keeps the cattle until satisfaction is made to him for the
injury； or till they are returned by him on an engagement to
contest the right to distrain in an action of Replevin。
The practice of Distress of taking nams； a word preserved
in the once famous law…term withernam is attested by records
considerably older than the Conquest。 There is reason to believe
that anciently it was resorted to in many more cases than our
oldest common…law authorities recognise； but about the reign of
Henry the Third； when it was confined to certain specific claims
and wrongs； the course of the proceeding was as follows： The
person assuming himself to be aggrieved seized the goods （which
anciently were almost always the cattle） of the person whom he
believed to have injured him or failed in duty towards him。 He
drove the beasts to a pound； an enclosed piece of land reserved
for the purpose； and generally open to the sky。 Let me observe in
passing that there is no more ancient institution in the country
than the Village…Pound。 It is far older than the King's Bench；
and probably older than the Kingdom。 While the cattle were on
their way to the pound the owner had a limited right of rescue
which the law recognised； but which he ran great risk in
exercising。 Once lodged within the enclosure； the impounded
beasts； when the pound was uncovered； had to be fed by the owner
and not by the distrainor； nor was the rule altered till the
present reign。 The distrainor's part in the proceedings ended in
fact with the impounding； and we have to consider what courses
were thereupon open to the person whose cattle had been seized。
Of course he might submit and discharge the demand。 Or he might
tender security for its acquittal。 Or again he might remain
obstinate and leave his beasts in the pound。 It might happen；
however； that he altogether denied the distrainor's right to
distrain； or that the latter； on security being tendered to him
for the adjustment of his claim； refused to release the cattle。
In either of these casts the cattle…owner （at least at the time
of which we are speaking） might either apply to the King's
Chancery for a writ commanding the Sheriff to 'make replevin；' or
he might verbally complain himself to the Sheriff； who would then
proceed at once to 'replevy。' The process denoted by this ancient
phrase consisted of several stages。 The Sheriff first of all
demanded a view of the impounded cattle； if this were refused； he
treated the distrainor as having committed a violent breach of
the King's peace； and raised the hue and cry after him。 If the
cattle （as doubtless constantly was the case） had been driven to
a distance and out of his jurisdiction； the Sheriff sought for
cattle of the distrainor and seized them to double the value of
the beasts which were not forthcoming the 'taking in
withernam' of old English law。 In more peaceable times； however；
and among law…abiding people； the deputy of the Crown was allowed
to see the cattle； which he immediately returned to their
original owner on a pledge to abide by the decision of a Court of
Justice。 A day was then appointed for the trial； which took place
with the proceeding well known to lawyers as the Action of
Replevin。 A great deal of technical learning has clustered round
it； but for our purposes it is enough to say that the plaintiff
in the action was the owner of the distrained cattle and the
defendant was the distrainor。
The comparative antiquity of the various steps in the
procedure are not； I think； difficult to detect。 Nothing can be
more archaic than the picture presented by its more venerable
details。 The seizure of the cattle； the rescue and the
counter…seizure； belong to the oldest practices of mankind。 We
were carried back； by the Legis Actio Sacramenti of the Romans；
to a sudden fight over disputed property barely stopped by a
casual passer…by。 Here； not in a city…community； but among the
ancient legal forms of a half…pastoral； half…agricultural people；
we come upon plain traces of a foray。 But the foray which
survives in the old Law of Distress is not； like the combat of
the ancient Roman Action；a mere dramatic representation。 Up to a
certain point it is a reality； and the most probable account of
its origin is that it is a genuinely disorderly proceeding which
the law steps in to regulate。 You will see presently that there
are other independent reasons for thinking that some of the
earliest interferences of the power which we call the Law； the
State； or the King； with high…handed violence consisted； neither
in wholly forbidding it nor in assuming active jurisdiction over
the quarrel which provoked it； but in limiting it； prescribing
forms for it； or turning it to new purposes。 Thus the next series
of incidents in the practice of distraint the impounding； the
stress laid upon pledge or security； and the acknowledgment of
continuing ownership which is implied in the liability of the
person distrained upon to feed the cattle； and in the rule that
the distrainor shall not work them belong to a newer range of
ideas which dictate the first attempts to moderate reprisals and
regulate revenge for wrong。 Distress now becomes a semi…orderly
contrivance for extorting satisfaction。 Many vestiges of this
ancient function remain。 It has been observed by Blackstone and
others that the modified exemption of certain classes of goods
from distraint plough…oxen； for example； and tools of trade
was not in its origin the least intended as a kindness to the
owner。 It was entailed by the very nature of the whole
proceeding； since without the instruments of tillage or
handicraft the debtor could never pay his debt。 A passage in the
'Dialogus de Scaccario' （ii。 14）； prescribing the order in which
the goods of the King's debtors are to be sold； strongly bears
out this view。